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Citizens Against Toxic Sprays v. Bergland

ELR Citation: 7 ELR 20325
Nos. No. 76-438, 428 F. Supp. 908/9 ERC 1897/(D. Or., 03/07/1977) injunction granted

The court permanently enjoins further spraying of the phenoxy herbicides 2,4,5-T and silvex for vegetation control in the Siuslaw National Forest after determining that the Forest Service's environmental impact statement (EIS) for the spraying program is inadequate. The mere fact that the program involves the use of substances registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) does not exempt it from the requirements of the National Environmental Policy Act (NEPA), nor does EPA's lack of objection to the EIS necessarily mean that the Forest Service has satisfied its NEPA obligations. Using the rule of reason standard of review, the court finds that the EIS fails to satisfy NEPA's requirement for a "detailed" statement because its discussion of the effects of phenoxy herbicides upon human and animal health is clearly inadequate. The EIS's conclusory statements about the safety of phenoxy herbicides are unsupported, and a review of the relevant scientific and medical evidence indicates that much vital information has been omitted.The EIS nowhere acknowledges or discusses the dangers of TCDD—an inseparable contaminant in 2,4,5-T and silvex—which is extremely toxic and is suspected of causing both cancer and birth defects. Nor does the EIS mention either the history of EPA administrative proceedings under FIFRA aimed at cancelling the registrations of 2,4,5-T and other herbicides containing TCDD for certain uses or the controversy over the effects of the use of phenoxy herbicides as defoliants in Vietnam. The statement also fails to discuss the results of EPA's monitoring program on TCDD levels found in animals taken from the Siuslaw Forest. The court notes that these deficiencies relate almost exclusively to the hazards of TCDD and that the injunction should therefore not extend to the use of 2,4-D, which does not contain this contaminant. The court also concludes that the EIS does not adequately discuss possible alternatives for vegetation management, such as fire, biological control, and no treatment. Moreover, the testimony of defendant's own witnesses establishes that the cost figures given for these alternatives are incorrect. The EIS thus indicates that neither the potential environmental risks to TCDD nor the actual cost of alternatives have been considered by the Forest Service in comparing the net benefits of phenoxy herbicides which those of other methods of vegetation control.

Without deciding whether injunctive relief is available to plaintiffs as a remedy under the Act for the Protection of Bald and Golden Eagles, the court rules that plaintiffs would in any case not be entitled to such relief because they have not established that the herbicide program has injured any particular eagles. The injunction shall continue until an adequate EIS has been prepared, circulated, and filed.

Counsel for Plaintiffs
Bruce H. Anderson
Coons, Cole & Anderson
101 E. Broadway, Eugene OR 97401
(503) 485-0203

Counsel for Defendants
Sidney I. Lezak, U.S. Attorney; William B. Borgeson, Thomas C. Lee, Ass't U.S. Attorneys
P.O. Box 71, Portland OR 97207
(503) 221-2101

Manley B. Strayer, James P. Rogers
Davies, Biggs, Strayer, Stoel & Boley
900 S.W. Fifth Ave., Portland OR 97204
(503) 224-3380